Pornography and the Myth of Free Speech

Guest Post by Betty McLellan

In the United States, an individual’s right to “free speech” is sacrosanct. Consider these examples of free speech: a little-known pastor of a small congregation in Florida, first, threatened to burn the Koran and, then, in spite of the huge outcry against such an action, did actually burn the Koran — and he did it in the name of free speech. He claimed he had a right to exercise his freedom of speech with no thought for possible consequences.

More recently, again in the US, an anti-abortion activist named Angel Dillard sent threatening and intimidating messages to a Kansas doctor who performs abortions, yet ultimately escaped punishment in court.

Let me share a few sentences from one of her letters to the Doctor. She said: “Thousands of people across the United States are looking into your background. They will know your habits and routines. They know where you shop, who your friends are, what you drive, where you live…You will be checking under your car everyday — because maybe today is the day someone places an explosive under it.” In the presiding Judge’s opinion, however, Dillard’s actions were covered under freedom of speech. The Judge said: “The First Amendment is the absolute bedrock of this country’s freedom” and, with that, this woman was able to get away with her incredibly threatening speech. There is something desperately wrong with the principle of freedom of speech when it is interpreted to mean, essentially, that anyone can say and do anything they like.

One more example that is particularly pertinent to my topic today: the degradation of woman in and through pornography. My contention is that the pornography industry and the millions of men around the world who use it, exploit and subordinate all women.

And remember – pornography is not just naughty pictures of two people having sex. It is not just so-called ‘harmless’ pictures of nude women. The majority of people who argue that there’s nothing wrong with a bit of porn probably think of it like that. Pornography, the kind of pornography that has now become mainstream, is alarmingly violent toward women’s bodies. One pornographer, quoted by Gail Dines in her book Pornland, says:

Women are much more understanding and aware of their true purpose in life than ever before. That purpose, of course, is to be receptacles of love; in other words, fuck dolls.

(Max Hardcore quoted by Dines 2010, p. 99).

As a psychotherapist, I’ve noticed in my work with women that they are reporting more and more often that their male partners are expecting and/or demanding anal sex from them. I have no doubt that this is a direct result of those men immersing themselves in pornography. Anal sex is growing in pornographic popularity. It’s also a particularly brutal type of porn. Referencing Gail Dines again, she explains that her research led her to visit Internet sites with names like: Anal Suffering and Anally Ripped Whores. The existence of successful sites with names like this is disturbing. It tells us something about the status of women generally, and especially about the treatment of women working in the porn industry.

So, I say that the principle of Freedom of Speech is a sham. It’s a myth. It privileges the rights of an avenging pastor over the rights of millions of Muslims, the speech of violent anti-abortion activists, and it privileges the rights of pornographers and users of pornography over the rights of women and girls working in pornography. It’s crucial, therefore, that feminists look more closely at this supposed principle of free speech and, in relation to pornography, demand an explanation as to why men are so much more privileged than women in terms of sexual speech.

In my book Unspeakable: a feminist ethic of speech, published last year, I introduce the concept of “fair speech” and insist that for speech to be truly free, and free for all, it must be fair. A cursory look at the way democratic societies operate reveals some interesting facts about the kind of free speech which is blind to the principle of fairness. I want to mention four of these facts here:

1. FREE SPEECH FAVORS THE POWERFUL. Every day when I turn on the radio or television, when I open the newspaper, it’s not your opinions I hear or read about, it’s not my own speech being reported in the media – it’s the views of the powerful. The views of politicians are reported endlessly. Corporate bosses and industry leaders. Their opinions and business dealings are always in our face. Also, reports on the behavior, good and bad, of high profile and very well paid sportsmen. The wealthy power elite have access to all the speech they want, while the rest of us – the disempowered – are silenced. Free speech certainly favors the powerful. Following from that, my second point is:

2. FREE SPEECH ENTRENCHES INEQUALITY. The more access one has to speech, the more powerful one becomes. And the more one is denied speech, the more one is reminded of just how powerless one is.

But, of course, it’s never clear cut. It’s not as simple as – everyone who is rich and famous has automatic access to speech and the rest of us have little to none. Some groups of people are given greater social authority than others. Free speech, in favoring the more powerful over the less powerful, entrenches inequality.

3. FREE SPEECH FOCUSES ON THE INDIVIDUAL. In the United States, the First Amendment focuses on the individual’s right to freedom of speech and freedom of religion. Today, neoliberalism and postmodernism encourage an individual perspective. Everyone has free choice – or “agency” – they tell us. And if one individual accumulates more wealth than another, it’s called “healthy competition.” If one individual dominates and destroys another, it’s called “survival of the fittest.” If one individual rapes another, he’s called “one bad apple.” An individual focus rules out any socio-ethical analysis.

4. FREE SPEECH IGNORES ISSUES OF QUALITY OF LIFE. Those who are silenced and subordinated by the inequalities inherent in the principle of Freedom of Speech have a diminished quality of life. Those who are victims of other people’s free speech – hate speech, racial or religious vilification, physical, sexual and emotional violence – all victims of other people’s free speech have a diminished quality of life. Free speech which is not also fair speech is a sham. It’s free speech for the few and silence for the many.

So, what would fair speech look like in relation to pornography? Here I will make three points:

. There would be a willingness to look at the issue of pornography from the perspective of harm, rather than user benefit;
. Hate speech would be disallowed under the banner of fair speech; and
. The definition of hate speech would be expanded to include pornography.

1. First point – If pornography were judged from the perspective of fair speech, we’d also have to look at it from the perspective of harm – which isn’t the case at the moment. There would be a genuine questioning: Who is harmed in the making and consuming of pornography? What are those harms? Should consumer demand outweigh the rights of those who may be harmed?

2. Second point – Hate speech would be disallowed under the banner of fair speech. To this point, the focus of hate speech in a legal sense has almost always been, specifically, on racial hatred. In Australia, for example, the Racial Hatred Act of 1995 made racial vilification a civil offense. Further, every state in Australia except the Northern Territory have criminal and/or civil provisions against racist hate speech. These provisions were derived from the two-pronged approach of the International Convention on the Elimination of Racial Discrimination which provides for 1) the right to freedom of opinion and expression; and 2) the prohibition of ‘dissemination of ideas based on racial superiority or hatred.’ Accordingly, it provides for freedom of expression while prohibiting speech that expresses superiority.

Other countries have also grappled with this issue. Canada, for example, protects free speech in its Bill of Rights. In its statutes, it has enacted a criminal offense of “hate propaganda”. Similarly in the UK, freedom of expression is protected in the Human Rights Act and hate speech is dealt with separately as a Statute in the Public Order Act. Interestingly enough, South Africa is the only nation thus far to incorporate a hate speech provision into the Bill of Rights itself. South Africa allows for the limiting of speech rights “where such limitation is ‘reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom’…” (Gelber 2002, p. 114). So, you see, the way is opened up for the interpretation of pornography as hate speech by seeing it from the perspective of harm, human dignity, and equality.

3. And that brings me to my third point about how pornography would be dealt with from the perspective of fair speech. The definition of hate speech would be expanded to include it. Pornography as hate speech would be disallowed in the name of “human dignity, equality and freedom.” For as long as men’s right to purchase and view increasingly degrading and violent images of women is protected by law, women will continue to be subjected to indignity and humiliation. Women’s speech rights will be denied in favor of powerful male interests that have much greater access to media. In other words, there will be no equality between the sexes.

We must be encouraged to open our minds to the possibility of replacing free speech with a concept of fair speech. Social issues must be analyzed in terms of harm to both individuals and groups of people. Hate speech should be made a criminal offense, and pornography should interpreted as hate speech against women. To the end that the human dignity, equality, and freedom of both sexes should be honored and protected, our immediate task as feminists, is to expose the hypocrisy of “free speech” and encourage its replacement with a concept of fair speech.

Dr. Betty McLellan is a feminist ethicist, psychotherapist, author and committed activist of long-standing. Also, she is the facilitator of Australia’s largest radical feminist e-list: f-agenda. She is currently researching material for her fifth book – a psychological biography – in which she will bring together her two areas of interest: feminist ethics and feminist therapy. Her previous books include: Overcoming Anxiety (1992); Beyond Psychoppression (1995); Help! I’m Living with a (Man) Boy (1999, 2006); and Unspeakable: a feminist ethic of speech (2010).

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Here’s another U.S. example. The assistant attorney general for the state of Michigan, Andrew Shirvell, claimed his right to free speech when he stalked and harrassed a student body president at the University of Michigan, Chris Armstrong. Chris Armstrong is gay and Shirvell has an anti-gay blog about Armstrong. The speech is surely hate speech. He also “pickets Armstrong’s house (with a video camera!) and blogs about his friends and his friends’ parents. . . .Amazingly, none of this is considered grounds for firing. As The Michigan Daily points out, “This type of hatred makes Shirvell unsuitable to remain a government official. It will affect his ability to objectively interpret laws – which is the job of the attorney general’s office.” (In the U.S. the state attorney general is the top law enforcement official in the state).

Yes, but more than that it’s free speech (with no adverse consequences and often a gain) for the few, and silence (and detriment) for their victims.

I am a believer in “freedom from harm”, and “freedom of speech” in practice works against that. Fair speech, taking into account dignity, equality and freedom (from harm) would certainly be an improvement.

The freedom of speech gives we, the people, and the press the right speak out against the gov’t ie: gov’t policies and actions, without the fear of being prosecuted, imprisoned or executed. It has never meant one could say whatever they damn well pleased. Libel and slander has always been on the books, threats are illegal (go ahead and just try to threaten the president/prime minister), yelling “bomb” on a plane or “fire” in a crowded movie theater is illegal (unless, of course, there really is one) and more recently, hate speech and speech inciting to violence is illegal and I know for a fact that members of the KKK have been indicted, prosecuted and found guilty of these charges.

Re: threats.
Assault is the threat to do bodily harm, aggravated assault is the threat to do bodily harm with a weapon, and battery is the actual touching. Assault has never been legal. Neither is rape tho and we know how that goes.

But this is the letter of the law and what the freedom of speech actually means and examples of what it doesn’t mean, at least as it was originally meant by our forefathers. I know this cuz I took Constitutional Law and got straight A’s. 😛 Knowing this, you can see how men have corrupted, twisted and perverted its meaning over the years, to suit themselves. I mean, how does pornography speak out against the gov’t? How does hate speech speak out against the gov’t? Makes me wonder if the Supreme Court justices got their law degrees out of a Cracker Jack box. “Oh looky! I got a law degree as a prize!”

The 1st amendment, like all amendments in the U.S. Bill of Rights (can’t speak for other countries), was meant to protect we, the people, individually or collectively, from the tyranny of the gov’t (but not your neighbor). It was never meant to give the powerful even more power against those who have been disenfranchised of same said power. THAT is a reversal. But that’s precisely what men in dominant groups are using it for these days. Which is a grotesque perversion of the law. What else is new with men? Speaking of which…

Re: Hugo
Sorry, Hugo, old boy, but it’s not libel or slander to accuse sexual predators or rapists of being sexual predators or rapists. Else how could we ever report anyone under the law for *any* crime? I could just imagine a mugger saying, “Oh no, no, no, you can’t tell anyone I mugged you. That would be libel and slander!” Yeah, right, that might happen. If it wasn’t true, you might have a case. But unfortunately for you, you bragged about your escapades on your blog, for all the world to see. And that makes it public property. Insert foot, chew vigorously, and swallow. Yum, don’t that foot taste good?

survivorthriver said: August 6, 20116:47 pm

Thankks so much for this topic, and excellent article. Thanks to you and others, I became educated about today’s porn. I wasn’t a user, so was not aware of what had happened between Playboy days and today. After that enlightenment, I realized how former male partners had actually been acting out their porn tutorials on me. I got pressured into trying something, of I had something spontaneously tried on me, that I now realize are standard contemporary commercialized sex industry fabrications.

The pornographers should have to do whatever they require their pornstitutes to do. ATM? You first, dood.

What about an Angel Dillard approach to pornographers such that their identities are widely posted for their exclusive community to know whose house Johnny is probably exposed to porno, or for all to know who in the neighborhood is involved in some pretty hurtful and damaging experiences of exploited abused women. Is there utility in free speech to out them? Somehow I don’t think the majority of women really like violent porn having taken ahold like it has. Cowed by P.C. faux liberalism, women have been stifled from voicing their dissent.

Can we insist with our free speech to get enforcement of existing laws such as preventing underage exposure to hard core porno? Clicking yes is not adequate enforcement of that legality. Juvenile males are a significant audience of online porn viewers, and who is served by young boys seeing thousands of images of violent images of sexually exposed women acting like they like that crap BEFORE he has his actual first kiss with a real girl?

The harms done by pornography are increasingly being documented. I think it’s a great use of free speech to dialog in public about these new results. Pornography is a teaching tool. Porn is used by pedophiles to groom victims. Ted Bundy acknowledged his appetites created by twisted porn, and warned about it. There are specific and documented harms to the viewer of porn regards their attitudes toward women and their increased tolerance of violence against women following that exposure. Let’s use free speech to ask questions about why we are tolerant of such levels of violence and ask how this is okay for society.

I hope more former pornstitutes will come forward and speak out about the abuse they experienced by the sex industry. Stephen Walker’s documentary is proof that the pornstitutes are broken down and coerced into the ugly violent sex scenes. En masse the thousands and thousands of young ladies who lived through their pornsitute years and have lived to tell the truth about it, may their voices ring with free speech exposures of what they endured. And for them to ask men how they can get off on females being hurt and an industry that is built off primarily victims of childhood abuse.

I hope more women speak out about their repugnance for porn-based sex acts that are biologically risky, in large part unhealthy and are contributing to increased epidemics of anal and oral cancers. I’m sick of the faking pornstitutes making men think all women enjoy the garbage peddled by pornographers. The more I realized how scripted my dating life was by the hidden factor of pornography in the partner’s life, the more disgusted I have become.

Pornstitutes are sell-outs to our sex because they fake that they like porn sex. It goes hand in glove with the saying I heard recently, “Women can fake orgasms. But, men can fake love”. Those commercial orgasm fakers are also victims of the industry, but it makes me mad that their willingness to fake pleasure from the stupid violent and degrading acts mandated of them makes real men demand that act from their real partners. But I target blame at the industry, but I do reserve some ire for the sex fakers.

Is there a commercially viable alternative to telecommunication providers that stream porn? My provider earns over a billion dollars a year streaming porn. I already cut back to basic cable, in order to boycott those soft porn “Girls Next Door” garbage from ever appearing in my living room. But that doesn’t seem like enough satisfaction to me. By streaming porn that cannot be prevented from underage viewers, abd showing filmed images that cannot be guaranteed to be consensual, the cable porn providers are violating law. They cannot guarantee that their audiences are not watching a trafficked woman who was also filmed for profit.

Maybe there are a lot of ways for genuine free speech to balance what is industrial paid speech?

faking pleasure from PIV and PIV-centric sex is a huge problem, and its one of the common themes i identified over at the PIV on TV blog of the PIV-centric narrative. thing is, non-porn actors do this too. every single instance of PIV, implied PIV and PIV-centrism, therefore, in movies, books, TV and porn is an example of faking it. every single one, and that amounts to thousands if not hundreds of thousands of images in all of our heads of women getting extreme (or any) pleasure from PIV, where PIV is known to be the least pleasurable and most dangerous sex act for women. even ATM isnt likely to kill you afterall.

anyway, the thing about women “faking it” wrt male-centric sexuality is the same across the board: it normalizes male-centric and male-defined sexuality for both men and women. when in reality, male-defined sex has little to do with sexual pleasure, from womens perspective: its the source of quite a lot of suffering actually, and it has been this way for a long time, for literally billions of women, across time and place. male-centric sexuality results in womens deaths, to the tune of some half-million women per year, every year (maternal mortality worldwide, last time i checked). and thats *all* that number represents; deaths from rape and rape-murder (for example) are kept somewhere else. male-centric “sex” in all its forms is the opposite of pleasure, for us.

tiptree2 (vliet) said: August 6, 20119:05 pm

Hi,

Thank you for this important discussion. It has really opened my eyes. A few months ago when I started reading here and in individual radfem blogs was the first time I had ever thought about the political implications of PIV (and the trans issues vis a vis women, and the implications of plastic surgery on women, and the sex-poz issue, and the postmodernism problem). I had decided, I think, that I just couldn’t stand the pain of looking at the politics of rape and pornography and had tried to ignore it. Yet here it was looked at clear-eyed and with clean rage, and after continuing to read and read I find that yes, I can bear the pain, because I’m not alone doing that. These blogs get us over the first step which is very very emotionally difficult. These blogs analyze things and clarify things with great courage.

Yes, we in the U.S. have hate speech laws too, and yes they do not include misogynistic speech as hate speech, and yes, pornography in inherently hate “speech” against of a definable class needing protection. The laws are in place and the legal theory is available for development. I think the American Civil Liberties Union would be a good place to start (I believe they have supported pornographic free speech in the past. Time to get new brains, people). I need to read Catherine MCKinnon now, should have done so a long time ago.

tiptree2 (vliet) said: August 6, 20119:51 pm

Hi, sorry, that line above should read “…and yes, pornography is inherently hate “speech” against a definable class needing protection…”.

The legal theory here reminds me strongly of U.S. laws relating to political asylum, where you have to be in an accepted class of people fleeing persecution in their countries to get asylum. There has been tremendous resistance against including Gender Asylum. In the past 10 years there have been a few legal cases in which women who have been gang-raped by public officials were granted asylum, and there is at least one organization fighting to broaden the scope of those cases. Here also it should be successful to show by analogy that misogynistic “speech” (in the broad sense of pornographic material) should be defined and disallowed (same as racial hate speech in every way I can see).

SheilaG said: August 7, 20112:22 pm

Just where would women find political asylum? Lands free of rape, pornography and hate attacks on the class known as “women?” To admit that political and sexual crimes happen to women BECAUSE they are a class is a threatening concept to global male supremacy, because then you’d have an international court that could deal with male crimes against women country by country. And I think women should have a country of our own, and that we should build this, if nothing else, to create a place where male supremacy doesn’t exist in institutional form… this country would be part of the UN, and it’s example as a beacon of liberation for women worldwide would be powerful. Just look at how much Sweden, Denmark and other advanced countries inspire women worldwide now. Take it up a notch.

KatieS said: August 7, 20113:10 pm

Betty, thank you for dealing with these difficult concepts. I very much like your analysis of the way that free speech is used to further privilege those in power (men) and harms women. I do agree that using the concept of fair speech makes the handling of pornography as a harm understandable and consistent in a way that the concept of free speech does not.

I like reframing the issue as fair speech, but have a concern that the idea of “fair” will also be used against us. In fact, it already has. There have been numerous “reverse discrimination” lawsuits in the U.S., claiming that racial minority preferences in hiring or in college admissions, for instance, are not fair to whites. One way I’ve heard this addressed is to make the distinction between equity and equality. I don’t think that this completely solves the problem, but this brings some clarity.

The larger frame of patriarchy is the problem, as we well know. In U.S. culture the idea of “freedom” is very much embedded as part of a national identity. The degree to which it is inextricably woven into national and personal identity is extreme compared to any other country, I suspect. It could be said it is the central part of the U.S identity.

Hence, we have the ethos of freedom tied to an ethos of unregulated capitalism finding a welcome in the U.S., even if the reality is that we have “capitalism for profits and socialism for losses” of multinational corporations. Free speech also includes an amendment to the U.S. Constitution that gives corporations (artificial persons) the rights of natural persons. This amendment has been consistently expanded in favor of corporations and most recently the concept of free speech extended creating now-unrestricted corporate donations to political campaigns.

This Supreme Court decision was seen by many as the final nail in the coffin of our elected representatives being responsible to the electorate. I would argue that these corporations represent the patriarchy in its most virulent form. The amount of power they wield is enormous. From the perspective of corporations, the idea of fairness appears to be a PR soundbite used to assuage the naive. I think it is anything but naive, but it is used that way. We will need to put teeth into it, especially in the U.S. They will also find numerous ways to use it against us if it is confined to the academic-legal-corporate complex. Some incredibly fierce and in-your-face concept of fairness, a populist fairness, is needed to break through institutionalized patriarchy in the U.S.

Katie, I agree the expansion of corportate personhood from allowing them to be “persons” a hundred years ago in order to be able to enter into contracts, into having the inalienable rights of citizens set forth in the Bill of Rights, such as Free Speech, is sort of the end of the road. See Iceland, above…

vliet (tiptree2)

Ms Nixon said: October 13, 20125:45 pm

The issue I take with all of this is that porn is not speech. Speech entails speaking; words that come from your mouth, that are written or shared somehow.

Porn is not an act of speaking or writing.

I will never understand how it has anything to do with “Freedom Of Speech”.